WALTER BRASHEAR, APPELLANT V. FRANCIS WEST, THOMAS M. WILLING AND HENRY NIXON, EXECUTORS OF JOHN NIXON DECEASED, AND HENRY NIXON, SAMUEL MIFFLIN AND JOHN LAPSELEY, ASSIGNEES OF FRANCIS WEST, appellees.

FRANCIS WEST, HENRY NIXON, SURVIVING EXECUTOR OF JOHN NIXON DECEASED, AND HENRY NIXON, SAMUEL MIFFLIN AND JOHN LAPSELEY, ASSIGNEES OF FRANCIS WEst, appelLANTS V. WALTer Brashear, appellee.

It is not necessary to the validity of a deed of assignment for the benefit of creditors, that creditors should be consulted; though the propriety of pursuing such a course will generally suggest it, when they can be conveniently assembled. But be this as it may, it cannot be necessary that the fact should appear on the face of the deed.

That a general assignment of all a man's property is per se fraudulent, has never been alleged in this country. The right to make it results from the absolute ownership which every man claims over that which is his own. An assignment was made by Francis West, to certain trustees of all his property, giving a preference to particular creditors; who were to be paid their claims in full, before any portion of the property assigned was to be divided among his other creditors. By the court: the preference given in this deed to favoured creditors, though liable to abuse, and perhaps to serious objections, is the exercise of a power resulting from the ownership of property which the law has not yet restrained. It cannot be treated as a fraud.

The assignment excluded from the benefit of its provisions, all creditors who should not within ninety days, execute a release of all claims and demands on the assignor of any nature or kind whatsoever. By the court: This stipulation cannot operate to the exemption of any portion of a debtor's property, from the payment of his debts. If a surplus should remain after their extinguishment, that would be rightfully his. Should the fund not be adequate, no part of it is relinquished. The creditor releases his claim only to the future labours of his debtor. If this release were voluntary, it would be unexceptionable. But it is induced by the necessity arising from the certainty of being postponed to all those creditors who shall accept the terms, by giving the release. It is not therefore voluntary. Humanity and policy both plead so strongly in favour of leaving the product of his future labours to the debtor, who has surrendered all his property, that in every commercial country known to the court, except our own, the principle is established by law. This certainly furnishes a very imposing argument against its being denied. The objection is gertainly powerful, that it tends to delay creditors. If there be a surplus, the surplus is placed in some degree out of the reach of those who do

[Brashear v. West and others.]

not sign the release, and thereby entitle themselves under the deed. But the property is not entirely locked up. A court of equity, exercising chancery jurisdiction, will compel the execution of the trust, and decree what may remain to those creditors who have not acceded to the deed. Yet the court are far from being satisfied, that upon general principle, such a deed ought to be sustained.

Whatever may be the intrinsic weight of objections to such assignments, they

seem not to have prevailed in Pennsylvania. The construction which the courts of that state have put on the Pennsylvania statute of frauds, must be received in the courts of the United States.

The assignment transferred to the assignees a debt due to the assignor by the complainant. The complainant filed a bill against the assignees, claiming to set off against the debt assigned to them, the amount of a judgment obtained by him against the assignor, after the assignment. By the court: if subsequent to the assignment being made, and before notice of it, any counter claims be acquired by a debtor to the assignor, these claims may, unquestionably, be sustained. But if they be acquired after notice, equity will not sustain them. If it were even true that they might have been offered in evidence in a suit at law brought in the name of the assignor, he who neglected to avail himself of that advantage, cannot, after judgment, avail himself of such discount as plaintiff in equity.

To deprive a party of the fruits of a judgment at law, it must be against conscience that he should enjoy them. The party complaining, must show that he has more equity than the party in whose favour the law has decided.

Construction of the laws of Pennsylvania relative to foreign attachments.

APPEALS from the circuit court of the United States for the district of Kentucky.

These cases were argued by Mr Bibb for the appellant, Walter Brashear; and by Mr Sergeant and Mr Peters, for the appellees.

Mr Chief Justice MARSHALL delivered the opinion of the Court.

These are appeals from a decree pronounced in the court of the United States for the seventh circuit and district of Kentucky, on a bill filed by Walter Brashear, on which an injunction was awarded to stay proceedings on two judgments obtained against him in that court, by Francis West. The final decree perpetuated the injunction as to the sum of four thousand and eleven dollars and sixty-eight cents, the supposed VOL. VII.-4 B

[Brashear v. West and others.]

amount of a judgment obtained against the complainant as special bail for West, and dismissed the bill as to the residue, with ten per cent damages thereon. Both parties have appealed to this court.

Francis Brashear, the plaintiff, a resident of Kentucky, being in Philadelphia, executed two notes on the 28th of February 1807, to Francis West, a citizen of Philadelphia, for three thousand five hundred and twenty-seven dollars and eighty-two cents each, payable fifteen months after date. On the 13th of July 1808, he executed a paper writing, in Kentucky, acknowledging the balance of an account due from himself to West, amounting to two thousand one hundred and forty-seven dollars and seventy-six cents.

The two notes, executed in February 1807, were assigned soon after their date to John Nixon of Philadelphia, as collateral security for a debt due from West to him.

On the 21st of April 1807, West assigned all his estate to trustees to be sold, and the money paid, first to certain preferred creditors, and afterwards to his creditors generally; with a proviso that no creditor should be entitled to receive any dividend who should not, within ninety days from the date of the deed, execute a release of all claims and demands upon the said Francis West, of any nature or sort whatsoever.

The plaintiff was also indebted to James Latimer of Philadelphia, to whom he consigned a quantity of ginseng with instructions to pay the proceeds, after discharging his own debt, to certain other creditors of the consignor, pro rata.

On the 10th of December 1808, James Latimer, to prevent other creditors, as he alleges, from obtaining a prior lien on the property in his hands, sued out a foreign attachment against the effects of Brashear, summoning himself as garnishee, and requiring bail in the sum of eight thousand dollars. He gave immediate notice of this proceeding to Brashear.

Early in the year 1809, he took a large part of the ginseng to himself, as purchaser, at six months credit; which he shipped on his own account to China, in March of that year. In the following May he shipped the residue, on account of himself and William Redwood.

On the 11th of March 1809, Francis West'sued out a foreign attachment to the use of his assignees, against Brashear, and

[Brashear v. West and others.]

summoned Latimer as garnishee. The process was executed the 7th of April.

On the 23d of September 1809, an attachment was sued out by Nixon's executors, which was returned executed on the 9th of October.

The attachments sued out in the name of West, by his assignees, and by Nixon's executors, were prosecuted to judg

ment.

In August 1811, James Latimer became insolvent, and assigned all his property for the benefit of his creditors. His debt to Brashear amounted to four thousand nine hundred and eighty-five dollars and thirty-five cents; no part of which could be collected, his whole estate being absorbed by preferred creditors.

Suits were instituted, in the name of Francis West, on the notes assigned to John Nixon, and on the acknowledged account herein before mentioned, in the circuit court of the United States for the district of Kentucky, and judgments obtained thereon. A bill was filed by Walter Brashear to be relieved from these judgments.

The bill alleges that the assignment to Nixon, and also that to Mifflin and others, trustees for general creditors, are fraudulent and void. It also alleges, that in September 1808, the plaintiff had become special bail for the said Francis in a suit instituted against him in one of the courts of Kentucky, by a certain George Anderson, in which judgment was obtained against him, and afterwards against the plaintiff as his special bail, for the sum of four thousand and eleven dollars and sixty-eight cents. That on the 3d day of November 1808, the said Francis West received for the plaintiff one hundred and twenty dollars, from the commissioner of loans in the city of Philadelphia, on account of the claim of William Bush; to which the plaintiff was entitled. And that the said Francis West was responsible for the money lost by the plaintiff in the hands of James Latimer; that loss having been caused by the attachments sued out to attach his effects in the hands of the said Latimer, and by the negligent and illegal manner in which the said attachments were prosecuted.

The answers admit that the assignment to Nixon was made for the purpose of securing a debt due to him, amounting to

[Brashear v. West and others.]

rather more than two thousand dollars. They insist that the assignment to Mifflin and others, for the benefit of the creditors of West, was fair and legal; and that Brashear had notice of it before he became special bail for West at the suit of Anderson. They contend that the attachments were legal, and were conducted regularly, and without fraud.

James Latimer, who was sworn as a witness, deposes that he shipped part of the ginseng on his own account, before the attachments were laid by the assignees of West; and that he shipped the residue after the attachment sued out by Mifflin and others, trustees for the creditors, had been served. He says there was not any collusion, agreement or consent between the executors of Mr Nixon, or the assignees of Mr West and himself, that the property or money attached should remain in his hands, should be shipped abroad, or used or disposed of in any way; other than the consent of the assignees of Mr West, that the ginseng might be sold; which consent was after their attachment, and before that of Mr Nixon's executors; nor was there any consent on the part of the said assignees or executors to any delay or procrastination of payment on his part.

The court admitted and allowed the claim to a set off for the money paid by the plaintiff as special bail for West, at the suit of Anderson, but rejected the other claims.

It is admitted that Nixon's exccutors have no interest in the notes assigned to their testator, beyond the debt intended to be secured; and to that extent their claim cannot be controverted. The suggestions made in the bills against it, are unsupported; and are denied in the answer.

The first inquiry is into the validity of the general assignment to Mifflin and others, trustees for the creditors of West. This instrument conveys to Samuel Mifflin, John Lapseley and Henry Nixon, all his estate, real, personal and mixed, in trust to sell the same as soon as conveniently may be, and to collect all debts due to the said West, and to pay and discharge the debts due from him, first to certain preferred creditors, and afterwards to creditors generally; "provided, nevertheless, that none of the above described creditors shall be entitled to receive any part or dividend of the property hereby conveyed, or its proceeds, who shall not, within ninety days from the date